Lead Suit Against Brady Sullivan Will Continue; Court Cites 'Rascality Test' in Ruling

Nov 9, 2015

Brady Sullivan Properties is a step closer to defending itself before a jury. Forty tenants are suing the property owner and landlord for lead contamination at Mill West, a luxury riverfront apartment complex in Manchester.

A Hillsborough County judge cited a peculiar legal principal when he rejected Brady Sullivan’s request to dismiss the case.

Last spring, Brady Sullivan hired an un-permitted contractor who wound up sandblasting a massive cloud of lead dust all over the interiors of some 100 apartments at Mill West. Kurt Milligan was a tenant at the time. His wife was pregnant and they were the first to find very high levels of lead in their home.

"Based on the ruling," says Milligan, "it’s refreshing to see that big business isn’t above the health and safety of New Hampshire residents."

That’s the ruling of Judge Kenneth Brown, who rejected – on all counts - Brady Sullivan’s motion to dismiss. The suit accuses Brady Sullivan of doing more than creating a lead hazard through negligent construction; it also claims there were lead hazards in the building before construction, and that Brady Sullivan hid those hazards from its tenants.

Under the rascality test, 'the objectionable conduct must attain a level rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce.' Jim Bissetti, Consumer Protection and Antitrust Bureau

And this is where that peculiar legal principal comes in: it’s called “the rascality test.” As in, figuring out if someone is acting like a rascal.

"It’s meant to be serious. It’s not meant to be a joke," says Jim Bissetti, who runs the New Hampshire Department of Justice’s Consumer Protection and Antitrust Bureau. The rascality test is applied under the Consumer Protection Act. Here’s the legalese interpretation of the test.

"Under the rascality test, 'the objectionable conduct must attain a level rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce,'" says Bissetti.

Translation? The judge thinks there’s enough evidence that Brady Sullivan could have lied to its tenants, knowingly exposing children to a dangerous neurotoxin.

The rascality test, says Bissetti, is a lot like the sniff test. Something doesn’t seem right.

"To use probably a cruder example, in pornography cases, you know it when you see it," says Bissetti.

It’s an important signpost for the court case that lies ahead: if Brady Sullivan is shown to have willfully broken this law, it allows the court to triple the award to tenants, and force the landlord to also cover all attorney’s fees.

The lawsuit moves forward as the state releases a report indicating child lead poisoning is still a stubborn problem. In 2014, 855 New Hampshire children were reported to be lead poisoned. Beverly Drouin works for the state office that compiled that report. She tells NHPR's The Exchange that, in reality, the numbers are much higher.

"We’re not even screening all the kids who should be screened," she says.

Children in low-income housing should be tested at the highest rates. Yet in the highest-risk communities last year, New Hampshire only tested 16 percent of children zero to six year olds. A new state law aims to dramatically increase those testing rates.

In the meantime, the Brady Sullivan lawsuit is playing out like some kind of public service announcement for health advocates who have long worried about all the lead paint silently poisoning many children in New Hampshire’s aging housing stock.

Since filing the lawsuit, Kurt Milligan’s wife has given birth to a baby boy – a healthy baby boy.

"This case is really going to bring light to a problem, not only for New Hampshire, but other New England states," says Milligan.

A true point no matter how the case plays out in court.